Return of a bank guarantee under 44 fl. The supplier provided a bank guarantee as security for the performance of the contract. The contract has been completed. The bank guarantee agreement does not provide for a condition on the return of the bank guarantee to the guarantor or on

One of the principles of 44-FZ is responsibility for the result and efficiency of procurement. In other words, the government customer needs guarantees that the winner of the tender will sign the contract and fulfill it in compliance with all the stated conditions.

There are two types of guarantees in public procurement:

• - insurance in case the winner refuses to sign the won contract.
• Enforcement of the contract- insures in situations where the supplier does not fulfill the contract or violates its terms.

There are two ways to secure a bid or fulfill a contract.

• Deposit your own money as collateral. To secure the application - to, and to secure the contract - to the customer's current account. The money will be "frozen" until the winner of the tender is determined or all the conditions of the contract are fulfilled.
• Provide a bank guarantee. The bank will reimburse the state customer for the guarantee amount in case of improper performance by the supplier of its obligations. A bank guarantee is issued in accordance with the requirements of 44-FZ, and the supplier pays a commission to the bank for receiving it.

What to choose to secure the contract - a cash deposit or a bank guarantee - is decided by the supplier.

When is a bank guarantee issued?

Bank guarantee to secure the application

The security is from 0.5 to 5% of the initial maximum contract price: the exact amount is always written in the procurement documentation.

The validity of the bank guarantee provided as security for the application must be at least two months from the date of the deadline for submitting applications. Upon completion of the procedure, the commission for the bank guarantee is not returned to the supplier.

Bank guarantee upon performance of a contract in an electronic auction or tender

The winner of the electronic auction is obliged to sign the contract and provide a bank guarantee within 5 calendar days from the date the customer places the contract on the electronic trading platform.

The security amount is from 5 to 30% of the initial contract price or equal to the advance payment. In case of improper performance of the contract, the bank will pay fines and penalties to the customer for the supplier.

In any of the above cases, the bank guarantee is irrevocable, valid for a month from the date of fulfillment of obligations under the contract.

When can the customer demand payment under a bank guarantee?

1. The winner, having won the tender, refuses to sign the contract. At the same time, the participant secured the application with the help of a bank guarantee.
2. The supplier does not fulfill the contract or violates its terms. In this case, the customer must unilaterally terminate the contract or provide evidence that the supplier is violating the terms of the contract.

According to the legislation, the demand of the state customer for payment under the guarantee is extrajudicial, that is, it can be put forward directly to the contractor of the contract within 1 month after the expiration of the period for fulfilling obligations under the contract.

Who can issue a guarantee?

Only financial institutions included in the list of the Ministry of Finance of the Russian Federation. Check in advance if the bank in which you have a current account is on this list.

The electronic agent Kontur.Spectrum will help you get. Prepare just one application, which will go to several banks. Compare the terms of guarantees and send documents to the bank directly from the service.

What will the bank require from the supplier?

To successfully and quickly obtain a guarantee, find out in advance the conditions of the bank: terms of issue, commission rates, a list of documents, and so on.

The reputation of the company is one of the most important conditions for issuing a guarantee. If the company works in good faith, pays taxes on time and reports to the regulatory authorities, it will certainly receive a bank guarantee.

To provide guarantees, most banks require the same list of documents from the client as for a loan:

• constituent documents (Charter, PSRN, TIN),
• full reporting on the financial condition and accounting for 1 year,
• completed preliminary application,
• purchase link.

For many banks, it is important that the procurement participant has an account opened in it. You also need to be prepared for this so as not to waste time negotiating with banks in which your company does not have an account.

In a bank with which good business relations have already been established, a bank guarantee can be issued according to a simplified scenario. As a rule, quarterly financial statements are sufficient for the financial analysis of a company.

How much does a bank guarantee cost?

The cost of a bank guarantee is determined individually and depends on:

• its duration,
• the degree of risk of payment on it,
• the quality of ensuring the recourse claims of the bank to the client.

As a rule, the commission for issuing a guarantee is from 1% to 5% of the amount of the required security.

The term of receipt is from 1 day to several days. Recently, these terms are being reduced, as the bank guarantee becomes an increasingly popular banking product, and banks consider electronic applications.

Bank guarantee limit

Before participating in an electronic auction or competition, you can find out in advance whether the bank will give you a guarantee if you win. To do this, you need to contact the bank to set the limit of bank guarantees. In this case, the bank asks you for copies of documents and sets a limit. True, two conditions must be taken into account:

• you will have to pay for setting a limit in some banks - about 1% of the guarantee amount,
• if the financial statements worsen in the next quarter, you will not be issued a bank guarantee.

Setting a limit is helpful. Firstly, this will allow you to find out whether it is worth counting on receiving a bank guarantee in principle, and secondly, after you win the tender, the bank will make a decision to issue a guarantee much faster.

What to do if there are a couple of days left to receive?

It is important for the winner to have time to receive a bank guarantee on time. If you miss the deadline for signing the contract, there is a risk of being included in the register of unscrupulous suppliers. How to be in this case? Communicate with the bank via the Internet, and sign documents with a qualified electronic signature. It is much faster and more convenient than filing paper documents.

If you decide to participate in electronic auctions and competitions, study in detail the issue of obtaining a bank guarantee, find out your limit or calculate the cost of a guarantee in advance for each interesting purchase. Subject to the terms of the contract, there will be no claims from the state customer, and therefore no payments under your bank guarantee.

In the comments to the articles you can get answers from other suppliers, and experts will answer

State institutions, foundations, municipal authorities and other legal entities regularly purchase goods. These are products for school lunches, and bricks for the construction of a city hospital. The list of possible purchases is much wider and also applies to services.

These needs require an organization (or even an individual) that will provide the best quality product or service at the lowest cost. The customer will get the best result. Future performers are selected in a competitive way: at competitions and auctions. In the first case, the winner is the one who offered the most favorable conditions for public procurement. In the second - the one who set the lowest price for services or goods.

The amounts of government contracts are large. This circumstance provokes financial risks for the customer and requires the withdrawal of large sums from the company's turnover, which is not economically feasible. Hence the need for insurance.

A bank guarantee serves as a safety net - a document regulating the relations of the three participants.

What is a bank guarantee

• Beneficiary

  The customer who organizes a tender (competitive bidding) to select the contractor (contractor, supplier). A bank guarantee for the Beneficiary is insurance (monetary compensation) against the contractor's failure to fulfill obligations under the contract.

• Principal

  Contractor who confirms to the Beneficiary its reliability with a bank guarantee to secure the application for participation in the tender or for the execution of the contract. In the first case, the participant will not be allowed to compete, in the second case, they will refuse to conclude a contract.

• Guarantee

  The bank, which, at the request of the Principal, issues a guarantee, registers it in the register and reserves the required amount on its accounts. If the Executing Principal violates the terms of the contract, the Guarantor will transfer the reserved money to the Beneficiary.

Securing an application for participation in the auction

Based on part 1. article 44 of 44-FZ, the customer - the organizer of the auction is obliged to provide for the provision of the application with a guarantee in the contract, if the tender is not electronic.

This type of BG is designed to prevent unreliable companies from participating in the tender, as well as financially protect the customer. With such a guarantee in hand, he is sure that the other party will definitely sign the contract.

Enforcement of the contract

Guided by part 2 of article 96 of 44-FZ, the winning participant is obliged to provide such a guarantee. Thus, he shares responsibility to the customer with the bank. If the first does not fulfill its obligations properly, the bank will pay the agreed amount to the customer. The last option of BG is more common in public procurement.

According to Part 2 of Article 45 of 44-FZ dated April 5, 2013 (as amended on December 27, 2018), only an irrevocable guarantee is required for government contracts. This means that the bank that vouched for the participant will not be able to revoke the guarantee. He will fulfill his obligations to the customer in any case.

Advance refund

The contract between the customer and the contractor may include an advance payment. The first pays the second a certain amount - an advance payment for goods or services.

If the customer is lucky, he will not use the bank guarantee for the return of the advance. That is, he will not demand an advance payment from the Guarantor. But you might not be lucky. Then the negligent performer will take the advance and disappear or perform the required badly.

The presence of BG will not leave a dissatisfied customer with nothing. The Guarantor returns the advance payment to the Beneficiary.

Ensuring warranty obligations

Government agencies often purchase expensive and difficult-to-maintain equipment for their own purposes. The risk of such a machine breaking down is a financial ruin for its buyer. The customer wants to be sure that "in case of emergency" the seller will help him. Otherwise, you will have to spend money again - to attract third-party organizations for repairs.

The customer usually defends himself in the following way:

• does not pay the seller the entire cost of the equipment, saving a part until the warranty period expires. In the event of a breakdown, this money will be used to fix it.
• obliges the seller to provide a bank guarantee for a certain period.

The latter secures the seller's obligation to eliminate the defects that have arisen during the operation of the equipment or simply return the money for a low-quality product.

Where to apply for a bank guarantee?

Based on part 1 of article 45 of 44-FZ, the customer has the right to accept a bank guarantee as security under the contract only if it is issued by a bank from the established list of accredited organizations.

The latter is formed from information about financial institutions, which is transferred by the Central Bank of the Russian Federation to the Ministry of Finance. You can check the presence of the bank in the specified list on the official website of the Ministry of Finance.

• Not all banks have the right to issue bank guarantees by default. To do this, they need to meet the requirements prescribed in part 3 of article 74.1 of the Tax Code of the Russian Federation and in Decree of the Government of the Russian Federation dated April 12, 2018 No. 440:
• The bank's own capital is at least 300 million rubles.
• The bank is not under bankruptcy proceedings (this does not apply to those banks where bankruptcy is actively prevented by the "Deposit Insurance Agency").
• The Bank must have a credit rating of 'ruBB-' on the 'Expert RA' scale and not lower than 'BB-(RU)' on the ACRA rating scale.
• The activity of the bank during the last 6 months complies with the standards of 86-FZ of 10.07.2002.

Register of accredited banks updated constantly. As soon as the Central Bank of the Russian Federation finds a suitable bank, it submits information to the Ministry of Finance of the Russian Federation within 5 days. In the same way, the main bank of the country finds credit institutions that do not meet the requirements, and transfers the data to the Ministry of Finance to exclude them from the list.

As of January 24, 2019, there are 258 organizations in the list of banks that have the right to issue BGs to secure contracts.

Important! If the bank that issued the guarantee to you was excluded from the list of accredited banks, then the BG issued by it still remains legitimate. It does not need to be re-released or replaced.

List of documents for issuing a bank guarantee

Lending institutions put forward their own requirements for the application package, but among them will be the following:

• the latest version (up-to-date) of the charter of the organization with all the changes;
• copies of passports of the founders, whose share is more than 20%;
• certificate of ownership (copy) of the premises where the organization is registered. If the premises are not owned, then the lease agreement to the address of the company's registration (copy);
• decision on appointment, minutes of the meeting or other documents confirming the powers of the (general) director in the form of copies, as well as a copy of his passport;
• organization card;
• management reporting for the last period and financial statements for the last year.

And how long will it take to arrange?

An application for a BG is considered by the bank in the same sequence as a loan, only much faster. The fact is that the organizers of competitions and auctions, according to part 5 of article 54 of 44-FZ, must submit a draft contract for signing within 10 days from the moment the tender results are determined.

Thus, the winner must issue a BG in a short time (find a bank, collect and submit documents, wait for their verification).

That is why the verification of documents for the release of the BG is carried out quickly. As a rule, after 1-3 working days, the bank makes a decision on the possibility of issuing a guarantee to the client. If there are no additional questions to it, then the decision will be received even faster.

Can a bank refuse to issue a bank guarantee?

The bank may refuse for various reasons. For example, not everyone is ready to consider young organizations for issuing BGs. Although, with the proper approach, finding such a bank is not difficult. After all, even companies that have existed for less than 3 months can participate in tenders today.

Credit institutions also pay close attention to financial statements, but this is not the only assessment parameter. They often put forward special conditions, so you need to contact different banks or brokerage companies. The latter are real conductors in the field of bank guarantees, because they know:

• how banks evaluate potential customers (each has its own rating system);
• what you need to consider in order not to get rejected;
• how to properly prepare the necessary documents;
• where it is better to issue a BG for a specific client.

Depending on the term and amount of the guarantee, banks may offer different conditions. Brokers who are well aware of the situation on the bank guarantee market will help you quickly navigate and even save money.

What about recall?

An irrevocable bank guarantee is a reliable tool for protecting the customer. Neither the Principal nor the Guarantor has the right to withdraw the guarantee unilaterally.

Revocation of the issued guarantee is possible by mutual agreement in the following cases:

• a written refusal of the Beneficiary from the BG (when the Principal fulfilled the obligations under the contract ahead of schedule);
• the principal changed the security of the contract (if provided for by the contract) to a cash deposit;

  Important! According to part 7 of article 96 of 44-FZ, the method of securing a contract can be changed. If the participant initially made a cash collateral, then later he can issue a BG for a reduced amount of obligations. Previously fulfilled monetary obligations (delivered goods, performed services) will be deducted from the amount of obligations.

• all the required payments have already been received for the BG;
• the contract has expired. The bank has the right to unilaterally withdraw the BG;
• the value of the collateral under the contract has changed;
• the principal is declared insolvent.

Even in the last two cases, the obligations of the Guarantor will be terminated only after the Beneficiary receives notification of the withdrawal of the BG.

Important! Since BG under 44-FZ is irrevocable, the Principal cannot get back the commission given to the Guarantor for the guarantee, even if the contract is terminated early. Bank commission - a one-time payment from the Principal-client.

Is it possible to get a bank guarantee faster?

For BG it is not necessary to apply directly to the bank. Brokerage companies have long settled on the market for such services, helping clients to receive it in a short time and with maximum comfort.

The process of considering an application for a BG is quite long and complicated. Bank employees check both accounting and constituent documents of the applicant.

If an application for a guarantee of more than 50 million rubles is received, the bank may request the client to provide collateral. But most of the time it's not needed. In this case, the period for obtaining a guarantee takes from 1 to 5 days.

For registration of BG it is convenient to cooperate with brokers. The latter have effective channels of interaction with credit institutions. However, keep your eyes open when choosing a broker - check the documentation before doing business with such a firm.

How much does a bank guarantee cost?

BG is a type of loan product that is a source of profit for the bank. The commission for the service is fixed and depends on several factors:

• the period for which the guarantee is issued;
• the amount of collateral required under the contract;
• the presence of an open current account in this bank;
• the form of the BG document (according to the bank's standards or at the request of the tender organizer).

When a customer places a contract for a large amount, he also prescribes a large percentage of security for obligations. BG from the contractor is designed to reduce risks. In turn, the bank also takes risks by guaranteeing for its client, therefore it sets a commission of 3-4%.

If the contract requires a small amount of security, then the bank takes a fixed percentage of the commission for issuing the BG. Banks prefer to issue property-backed guarantees. At the same time, a guarantee without collateral is also not a problem for banks and is issued everywhere. Similar services are offered now at affordable prices.

What must be in a bank guarantee?

• Penalty for failure to fulfill obligations under the terms of the contract.
• The very obligations of the Principal, the fulfillment of which is ensured by the guarantee.
• The condition for calculating the penalty in favor of the Beneficiary.
• A condition, the fulfillment of which entails the transfer of the agreed amount by the Guarantor to the Customer's settlement account (this is called the fulfillment of the obligations of the Guarantor in favor of the Beneficiary).
• The list of documents contained in Decree of the Government of the Russian Federation No. 1005 dated November 8, 2013 (as amended on June 30, 2018) and is presented by the Beneficiary to the bank along with his demand to transfer the amount of money by BG.
• Validity period of the guarantee of the Guarantor. According to part 3 of article 96 of 44-FZ, the term of the BG is longer than the term of the contract by at least 1 month. The customer has the right to establish a longer guarantee period (longer than the term of the contract by 3 and 4 months).

  Important! Distinguish between the period for the performance of work, the provision of services and the total duration of the contract. The term of the contract = The term for fulfilling the customer's payment obligations + The term for performing work.

• The condition that the contract allows the Guarantor to vouch for the Principal.

In what cases the customer will not accept a bank guarantee?

According to part 6 of article 45 of 44-FZ, the customer will not accept the document if:

• BG does not meet its requirements set out in the tender notice;
• there is no record of a bank guarantee in the Register of Bank Guarantees;
• the document does not contain the paragraphs required under Part 2 of Article 45 of 44-FZ;
• the BG does not stipulate a condition for an indisputable monetary debit in favor of the Beneficiary from the Guarantor's account.

Important! The Guarantor Bank is obliged to pay the established penalty to the Beneficiary no later than 5 working days from the date of his request (but before the expiration of the BG!). If this does not happen, the money is written off in an indisputable manner.

The customer has 3 days to verify the warranty. If he refuses to accept the BG for the purposes of the contract, then during this time he must send a written response (or by e-mail) to the contractor with the reasons for the refusal.

What is the "register of bank guarantees" and who can view it

The register of bank guarantees is an official electronic resource where data on issued guarantees are entered.

The register is maintained by the Federal Treasury, and guarantees from this list are issued strictly by banks from the list of accredited banks (for more information on how to get there, see Where to apply for a bank guarantee?).

Distinguish between open and closed registries. The procedure for adding a new BG to the registry just depends on the openness of the tender.

The Rules for maintaining the BG register, approved by Decree of the Government of the Russian Federation of November 8, 2013 No. 1005, describe in detail the procedure for creating a new entry in the open register:

At the same time, there is a closed registry. It is maintained by the Federal Treasury, but the procedure for making an entry differs from that described above.

Closed competitions and auctions are less common than open ones. They arrange for contracts containing state secrets. Among the services provided, there are services for judicial structures, the Ministry of Defense of the Russian Federation, the State Fund, etc.

The Rules for maintaining a closed register of bank guarantees, described in the RF GD No. 1005, set out the procedure for creating a register entry. It differs from the open registry procedure.

• The Bank issues a guarantee and within 1 working day undertakes to transfer the data to the Federal Treasury at its location.
• The state body assigns a registry number and sends an extract from the closed registry to the bank within one business day.
• The bank receives the statement and sends it to the client-Principal.

Important! Despite the “closedness” of such a registry, both the Beneficiary and the Principal can independently request an extract from the state body.

What other requirements are often made by the customer?

The customer always seeks to minimize financial risks, therefore, he often introduces additional conditions into the contract.

1. Prepaid expense.

   The customer undertakes to pay it to the supplier, which for the latter is both an advantage and a burden at the same time.

   If such a condition is in the contract, then the contractor has an additional obligation under the guarantee - the return of the advance. For this, the bank may charge a higher commission.

   Important! Not all banks increase the commission for the return of an advance in the terms of the contract. Some are loyal. Contact several banks and compare conditions.

2. Indisputable write-off.

   If the Principal has not fulfilled or violated the terms of the contract, then the Beneficiary can apply to the Guarantor (to the bank) to transfer money to his account without unnecessary proceedings.

3. Standard form of the document.

   Customers may require the execution of a BG according to their requirements listed in the tender documentation, and may even recommend a standard form of the document.

   Not all banks are ready to make such concessions. Often, an increased commission is charged for deviations from the bank form of a document in a credit institution. If the customer insists on a special form of BG, then it is better for the contractor to tell the bank representatives about this in advance.

   Important! General requirements for the preparation of a bank guarantee are given in PP No. 1005 dated November 08, 2013, but sometimes the customer prescribes special requirements for the text of the BG in the tender documents. For example, compose a text with a complete list of obligations or consider disputes only at the location of the customer, etc.

How not to become a victim of scammers when applying for a guarantee?

A bank guarantee is most often issued by bidders in an accelerated mode. The organizers do not give much time for the buildup, but there is a lot to be done - to choose a bank and collect documents. Fraudsters take advantage of this, offering ever shorter terms for issuing a BG and amazingly low prices for their services.

A "gray" bank guarantee is always convenient and fast, and most importantly - cheap. However, such a compromise is not worth the subsequent consequences for the performer.

The most painless option for the contractor - the customer will require to provide other security within 10 days.

Customers often simply stop working with the organization that provided the fake document. You will be entered in the register of unscrupulous suppliers. In addition, the use of forged company documents is subject to criminal liability.

It is not worth harboring illusions - deception is very easy to calculate. The "gray" guarantee under 44-FZ will not be in the UIS register. When the customer enters his personal account in the EIS to conclude a contract, he will definitely find this out.

You can also be circled around the finger. In the hope of quickly getting the right paper, you can contact an unscrupulous broker or the same bank. Now you will need to carefully check the received document.

The "correct" bank guarantee is issued on an official letterhead, where the bank is indicated with all the details, as well as with the authority of the employee who issued the BG.

What to check:

• Validity of bank details.

  Information is specified on the official website of the bank or in the office.

• Sufficiency of the bank's funds to reserve the amount under the guarantee.

  Official website of the Central Bank - "Information on credit institutions" - Enter the registration number or name - Turnover sheet for account 91315

  The amount of the guarantee must be greater than the amount on this account. If this is not the case, then the bank probably has nothing to do with the issued guarantee.

• Presence of the Guarantor in the Register of accredited banks on the official website of the Ministry of Finance.

  It is important to understand whether the corresponding license has been revoked from the bank, whether it has the right to be a guarantor under the contract.

• Record of a bank guarantee in the electronic register of bank guarantees.

  In view of part 8.1 of article 45 of 44-FZ of 04/05/13, information about guarantees is available only to banks and customers. Everyone else can call the Bank that issued the guarantee and clarify its legitimacy.

  Important! Since 01/01/19, the Unified Register of Procurement Participants has been maintained. The latter are required to register in the system (Article 24.2 of 44-FZ). The participant's personal account will display bank guarantees issued for him.

If the bank:

• ready to issue a guarantee for a large amount without a guarantee and collateral;
• offers the issuance of a guarantee at a price that is significantly lower than the prices for the service in other banks.

Most likely they are scammers.

Important! The BG limit is equal to the average revenue of the participating company per quarter. Amounts that are many times higher than the organization's revenue should alert the contract executor.

If the bank guarantee turned out to be “gray”, it is advisable to immediately file a complaint with law enforcement agencies. A case will be initiated under article 159 of the Criminal Code of the Russian Federation “Fraud”. Thus, the participant will be able to remove suspicions from himself, insure against blacklisting of service/goods providers and continue participation in the tender from another BG.

A bank guarantee under 44-FZ is an insurance of state institutions from an unscrupulous contractor under a contract. The latter is signed only if there is security.

But this is not the only case where a guarantee is indispensable. In order to participate in a tender, have a chance to supply goods or perform work for a government agency, an organization is sometimes required to provide an application for participation.

The guarantee can be obtained both through the bank and through the broker. Now it is not difficult to do this: no deposit is required, the waiting time is short.

Participation of the company in public procurement is a responsible and profitable business. However, every step of a competent leader here relies on awareness, accurate knowledge of the release procedure and possible pitfalls (deceivers are on the alert!).

Having carefully studied the article, you will be armed and will prove yourself well in public procurement. Good luck!

Reading time: 7 min

One of the forms of ensuring the execution of a state or municipal contract is a bank guarantee. For the supplier, it is an alternative to depositing cash in the form of a fixed amount.

Dear readers! Each case is individual, so check with our lawyers for information.Calls are free.

What legal regulations govern

Issues of registration and requirements for a bank guarantee are well regulated in the legislation on the contract system. Requirements for a bank guarantee are spelled out in Art. 45 44-FZ, and the terms of the state contract are contained in Art. 96 44-FZ.

Also of great importance in the issue of regulating the requirements for this form of security belongs to the Government Decree of 2013 No. 1005 "On bank guarantees ...".

Until June 30, 2019, the participant has the right to provide a document only as a contract. But after the specified date, he will be able to use it to secure an application in electronic competitions and auctions. These changes were enshrined in Government Decree No. 626 of 2018.

The use of this form of security has many advantages for the supplier: it allows him not to divert large sums of money from circulation when participating in purchases and makes it possible to participate in the implementation of several at the same time.

Concept and cases of provision

The concept of a bank guarantee is given in Part 1 of Art. 368 of the Civil Code. It is understood as a written payment to the beneficiary of a certain amount of money when making a demand for payment. Such a request comes in accordance with the terms of the obligation assumed by the supplier.

With regard to public procurement, funds are paid by the bank in favor of the state customer if the procurement does not fulfill its obligations. In the future, the supplier will be obliged to reimburse the debt to the bank.

There are three main groups of participants involved in the scheme for depositing security through a bank guarantee: the guarantor (bank), the principal (procurement participant or supplier), and the beneficiary or customer.

It should be noted that the legislation allows for the possibility of replacing the form of securing the performance of a contract during its implementation. So, if the security was paid in money, then it can be replaced by a guarantee under 44-FZ. At the same time, its amount should be reduced by the cost of work already performed by the time of replacement.

A bank guarantee under 44-FZ must be irrevocable. Its peculiarity lies in the fact that it is not allowed to withdraw, cancel or change.

According to the Civil Code, the essential conditions of a guarantee are an indication of the principal, the amount of the security and the duration of its validity. Whereas the list of requirements for this document under 44-FZ is much more extensive.

Requirements for the content of a bank guarantee are given in Part 2 of Art. 45 FZ-44. According to them, this document should contain the following information:

1. The amount of the bank guarantee to be paid by the guarantor to the customer in the established cases. According to Art. 96 44-FZ, these are situations of improper performance by the supplier of obligations under the state contract.
2. Obligations of the principal, the improper performance of which is subject to security through a bank guarantee.
3. The obligation of the guarantor to pay a penalty in the form of a delay in payment of a claim under a bank guarantee. The amount of such penalties is 0.1% of the amount payable for each day of delay.
4. The condition that the guarantor's obligations are considered fulfilled after the actual receipt of funds to the customer's account.
5. Terms of the bank guarantee based on the requirements of Art. 96 44-FZ.
6. Suspensive condition on the conclusion of a guarantee agreement on the obligations of the principal.
7. An established list of documents that are provided by the customer along with the requirement to pay the amount under the guarantee. It is compiled taking into account Government Decree No. 1005 of 2003. At the same time, it is not allowed to include in the list of documents judicial acts that confirm the failure to fulfill obligations by the supplier.

In the event that the procurement documentation contains an appropriate condition, the bank guarantee includes a condition that the customer has the right to write off funds from the guarantor's account in an indisputable manner if he has not fulfilled the customer's demand for payment under the bank guarantee within 5 working days , which is sent before its validity period has not expired.

Despite the stringent requirements for the content of the guarantee, a unified form of this document has not been developed.

What documentation does the bank request from the supplier

The terms for signing the state contract with the winner of the auction and the terms for issuing the guarantee are strictly limited. So, for example, there is a rule that the contract must be signed within 5 days.

That is why guarantees under the state order within the framework of 44-FZ are issued by banks according to the express method of assessing solvency, and the total issuance period is within 2-5 business days.

To obtain a bank guarantee, banks usually request the following set of legal and accounting documentation:

• last year's tax returns and completed quarters;
• income and expense ledger;
• founding documents of the company(copy of the charter);
• extract from the Unified State Register of Legal Entities;
• other documents which confirm the financial stability of the company.

In rare cases, the bank requires the supplier to open a current account with it. Usually such a requirement is presented with a large amount of the guarantee.

What documents the customer must provide to the bank

The beneficiary, along with the demand for payment under a bank guarantee, must provide the bank with the following documentation:

1. Payment order, which confirms the advance payment to the supplier (if the advance payment was provided for by the contract).
2. A document that confirms the occurrence of a warranty event under the terms of the contract(if the warranty covers the warranty period).
3. A document confirming the powers of the executive body that signed the guarantee requirements(order on the appointment of the head, decision on election, power of attorney).

Validity

The term of the bank guarantee is one of the essential conditions. 44-FZ contains mandatory requirements for the terms of a bank guarantee. According to part 3 of Art. 96 44-FZ, it must be valid for at least 1 month after the expiration of the contract.

This requirement means that the terms of the document must be at least a month longer than the terms of the state contract. But the customer may establish other requirements: for them, the guarantee may exceed the terms of the state contract by two and three months.

It should be borne in mind that the terms of the contract do not always coincide with the terms of the work. So, this may additionally include terms for payment and warranty obligations. All this may lead to the need to issue a guarantee covering longer periods.

Although, according to civil law, warranty obligations are not included in the term of the contract by default, but the judicial practice on this issue has developed ambiguous. Therefore, if there is a condition in the procurement documentation that the guarantee must cover the terms of the guarantee obligations, the participant will either have to issue it or prepare to appeal such a requirement in court.

Is it possible to return the bank guarantee after the execution of the contract?

Since the bank guarantee is irrevocable, none of the parties has the right to its preliminary withdrawal.

The bank guarantee in case of conscientious fulfillment of its obligations under the state contract is not returned to the supplier, and its validity period automatically expires one month after the completion of work.

Thus, a bank guarantee under 44-FZ is a popular form of securing the execution of a government contract. Within the framework of the contract system, only an irrevocable form of guarantee is used, the content of which is subject to strict requirements. The essence of this form of security is as follows: in the event that the supplier fails to fulfill its obligations under the state contract, the customer transfers a certain set of documents to the guarantor bank, and the bank must transfer the guarantee amount to it. In the future, the supplier is obliged to repay the debt to the bank. Under the new rules, information about bank guarantees is not subject to public disclosure, but the register of issued guarantees is still maintained.

A bank guarantee is a financial instrument designed to ensure the fulfillment of obligations undertaken by one party to another, a kind of "insurance" of the buyer from an unscrupulous seller. Physically, it is a document on paper or in electronic form containing information about the parties to the contractual relationship, contract obligations to be fulfilled, terms of provision, signatures of authorized persons.

The procedure for issuing and using a bank guarantee involves the participation of three parties:

• Principal- a seller, supplier of goods or services, he is also a contractor or performer - an individual or legal entity licensed to carry out a certain type of activity.
• Guarantee- a bank from the list approved by the Ministry of Finance, which is accredited to issue bank guarantees.
• Beneficiary- customer, buyer, recipient of goods or services, he is also the beneficiary.

The purpose of the bank guarantee is to stimulate the supplier to fulfill the agreement with the highest quality in compliance with the agreed deadlines, leaving him the opportunity to operate with working capital. In case of violation of contractual agreements, he will be punished literally with a ruble, and the buyer will be able to compensate for his losses and risks by covering them at the expense of the guarantor. The benefit of the bank is to receive a commission for the publication of a document, its extension or amendment. In the event of a credit debt, the bank receives interest for the entire period of debt repayment by the principal.

Another important point is to eliminate the corruption component in the conduct of auctions, tenders and tenders. The presence of this type of security is mandatory for public procurement, according to Federal Law No. 44-FZ.

Return by "BG"

Among the variety of "BG" in the procedure of state and municipal procurement is most often used tender guarantee , performance guarantee, guarantee returnpayment.

To participate in a public procurement tender, the seller submits an application and makes a cash contribution as confirmation of the seriousness of his intentions to the account specified by the customer. The amount of this financial security usually ranges from 0.5% to 5% of the contract price. It happens that the applicant does not have such free funds. In order not to withdraw funds from circulation and, at the same time, not to miss a profitable deal, the supplier can provide collateral bank guarantee .

After the announcement of the results of the tender, all the losers are returned their money. The winner will receive the deposit back only after signing the contract. If suddenly the supplier refuses to sign the contract, the entire mortgage amount will go to the buyer.

If the organization has won the tender, has a full package of duly executed documents, is confident in its product and intends to sign an agreement, it is obliged to provide the customer with bank guarantee of performance of the contract . Without it, the parties will not be able to conclude an agreement. The amount of security can be up to 30% of the declared contract price.

What are the grounds for a return?

Conditions for the return of "BG" and the deposit

A bank guarantee provided as collateral is returned in the following cases:

• The bidder made mistakes or violated the application procedures prior to the start of the auction.

• The supplier withdrew the application for participation before the end of the deadline.

• The customer canceled the definition of the supplier within a reasonable time before the appointed date, i.e. changed his mind about choosing a potential performer for some reason.

• The tender has been completed, the protocols have been drawn up, the supplier has been selected. All, except the winner, receive their deposits back within 3 to 5 days.

• The competition was declared invalid due to court delays or force majeure, which prevented the signing of the contract for more than 30 days.

• The contract was signed, but now it is terminated by mutual agreement of the parties or at the initiative of the customer without any claims on his part, despite the fact that the original conditions may not be met.

• The parties adopted an agreement to replace "BG" with financial support. (In practice, the opposite happens more often: money is exchanged for a guarantee contract).

• The terms of the contract are fully fulfilled by the principal, and the beneficiary does not have any claims.

The return of financial security under 44 FZ (clause 13 of article 44) is not made if:

• The participant who won the tender evades the conclusion of the transaction.

• The participant grossly violated the provisions of the law on tenders, auctions and auctions.

• The deadlines for withdrawing or changing the application have been disrupted.

Such participants earn a bad reputation for themselves and run the risk of being on the list of unscrupulous performers, depriving themselves of the opportunity to enter into lucrative contracts in the near future.

Speaking about the return of the deposit, they usually mean finances. The bank guarantee document itself is not given away, it simply becomes invalid after the terms of the contract are fulfilled.

Conditions for the return of "BG" performance of the contract

The entire period of time during which the contractor must fulfill its obligations, the guarantee agreement is with the beneficiary. However, under certain circumstances, the bank performance guarantee may return to the bank. The provisions on the return, withdrawal and termination of the "BG" are spelled out in the Law on the contract system No. 44-fz.

The law does not provide for a full refund of the guarantee, as it must be irrevocable. Neither the principal nor the guarantor can return or revoke the agreement. This is the main contradiction with the Civil Code of the Russian Federation (paragraph 23 of Article 378), which establishes the reasons for the return of a bank guarantee:

1. The customer received the full guarantee amount, which was discussed in the agreement. For example, as compensation for losses due to the contractor's dishonesty.

1. Warranty expired , which usually coincides with the term of the concluded contract. If the term of the latter is extended, the customer should follow the change in the period of validity of the agreement. Under an overdue guarantee, the beneficiary loses the opportunity to receive compensation even in court.

1. The beneficiary notifies the guarantor in writing that he waives the rights under the agreement and releases the bank from obligations under the guarantee. and.

1. The beneficiary, on his own initiative, renounces his rights under the guarantee agreement with the subsequent return of the document to the financial institution .

Obviously, only the beneficiary has the privilege and the opportunity to return the guarantee, refusing the possibility of receiving compensation. In the first three cases, it is not necessary to return the paper carrier to the guarantor.

In addition to these four, there are general reasons for the return of a 44 FL contract guarantee, some of which were mentioned in the list under the conditions for the return of the deposit:

• Execution of the contract in full and on time. The supplier fulfilled all the agreed transactions. The customer is satisfied. All documents, acts of work performed and payment orders were signed. The beneficiary can return the guarantee to the bank.

• Termination of the contract at the initiative of the customer or by agreement of both parties. If there are no claims against the contractor, the guarantee is simply cancelled. If there are unsatisfactory moments, the beneficiary receives compensation for losses at the expense of guarantee funds. And the principal settles with the guarantor. If during the transaction the supplier received an advance payment under a bank guarantee, the return algorithm is similar.

The period for the return of the bank guarantee is governed by the provisions of the concluded agreement and can last up to 45 days. In practice, this period is reduced to 5 days.

Conditions for withdrawing a guarantee by a bank

The bank should not interfere in the relationship between the supplier and the buyer. He simply undertakes to pay if the appropriate event comes. The essence of this financial instrument is to give the interacting parties a sense of constancy and reliability. The ability to revoke a bank guarantee is virtually nil, unless the guarantee agreement specifies the conditions for its revocation.

More often they talk about factors that exclude the withdrawal of a bank guarantee:

• The obligations of the principal have been fulfilled in full or in part;
• The parties decided to amend the original version of the agreement;
• The transaction is declared invalid;
• It turned out that the debtor used the received funds for other purposes.

The maximum that can be done is to reduce the amount of security when a compromise is reached between the parties. But usually this is contrary to the interests of the customer.

When does BG stop?

Reasons for the termination of the bank guarantee

In order of importance, in the first place is the contract between the contractor and the beneficiary. The transaction between the guarantor and the principal has a lower priority, but it is unlikely that it will be possible to neglect the terms of this document. The letter of the law defines the following circumstances under which it is possible to cancel a bank guarantee:

• All three parties agree on the transfer to the interested party compensation in the form of money or property.
• The guarantor and the beneficiary are the same person. The phenomenon is extremely rare, but sometimes banks also act as customers in competitive purchases.
• The warranty agreement includes new conditions which were absent in the previously signed document.
• Circumstances have arisen that unreal fulfillment of obligations under the guarantee.
• Takes place liquidation guarantor (bank) or beneficiary as legal entity.

The guarantor must notify the principal of the fact of the termination of the guarantee agreement: it may contain a clause on the partial refund of the commission paid to the bank for the execution of the agreement. The amount is calculated from the number of days the guarantee is valid and the days remaining until the end of its validity period. There is also the possibility of refunding VAT to the contractor, subject to certain conditions.

When issuing a bank guarantee for the first time, the supplier must take into account the fact that the time for issuing a document may exceed the deadline for submitting an application for a tender. Some intermediary companies offer their services to speed up the process of identifying a client and obtaining a warranty agreement for a small fee.

According to the current Russian legislation, which regulates the procedure for issuing and returning a bank guarantee (BG), the agreement on the provision of this document should contain detailed information about how to return a bank guarantee and the circumstances under which this may occur.

What legislative acts regulate the activities of working with bank guarantees

Currently, there are no regulatory legal acts (NLA) that regulate in detail the issues of registration, application, and termination of the BG - all related norms are distributed throughout the Russian regulatory framework.

The main regulatory legal act regulating the procedure for the procurement of goods, works and services in order to ensure municipal and state needs, the signing of contracts and their implementation, which refers to a bank guarantee, is Law No. 44-FZ. It regulates the relationship between suppliers and customers, describes the procedure for concluding municipal and state contracts. According to this law, a bank guarantee is a tool used to ensure the fulfillment of obligations under a government contract. With its help, the risks of each party - the customer, the contractor and the bank - are minimized. In essence, this document resembles a standard contract, in which all rights and obligations of the parties must be spelled out.

The main requirement for the BG is its mandatory entry into the Unified Register of Bank Guarantees. This is done to prevent possible falsification of this document by financial market participants. The banking organization that issued the guarantee is obliged to enter data about it into this register within the next business day. According to the latest changes in Russian legislation, the irrevocableness of the BG and the presence of a clause on the declared indisputable write-off in the text of the bank guarantee agreement are also mandatory requirements. If at least one of them is not fulfilled, the guarantee is considered illegal and has no legal effect.

Banks that meet a number of requirements set forth in the Tax Code of the Russian Federation are entitled to issue BGs. The list of such organizations is published monthly by the Ministry of Finance on the page of the official website. In addition to banks, credit organizations and insurance companies are also entitled to carry out activities for issuing bank guarantees.

In addition to Federal Law No. 44-FZ, important legislative acts regulating the use of BG are:

• Civil Code of the Russian Federation (Part 1), namely its Article 368 - Article 379;
• Tax Code (part 2), namely art. 176.1, Art. 204;
• Russian Arbitration Procedure Code Art. 94, art.182, art.283;
• order of the Russian FCS No. 2477 dated December 7, 2011;
• Decree of the Russian government No. 1005 dated 08.11.13

All these documents describe in detail in which cases a bank guarantee can act as financial security, what requirements it must meet, and regulate the work of organizations involved in the design and issuance of BGs. In addition, these legal acts set out the rules for how to return a bank guarantee upon termination of a contract, and what is needed for this.

When is it possible to return a bank guarantee?

As stated in Article 378 of Chapter 23 of the Russian Civil Code, the bank's obligations to the customer are terminated in the following cases:

• expiration of the guarantee, while the original of this document is not returned to the banking organization;
• the amount for which the BG was issued has already been paid to the beneficiary (customer) - while the original guarantee also does not have to be returned to the guarantor (bank);
• receipt by the bank of an application in writing from the beneficiary to waive his rights under the guarantee. At the same time, the guarantor is released from his obligations, and the original BG is not returned to the bank;
• waiver by the beneficiary of his rights under the guarantee. In this case, the principal (debtor) is obliged to provide the original bank guarantee to the financial institution that issued it.

It is possible to terminate the agreement on a bank guarantee unilaterally, when the principal has not paid the guarantor the compensation provided for in the agreement; in case of failure to provide the guarantor with the required security by the principal; when the warranty is withdrawn.

Revocation of the guarantee by the bank is not possible in the following cases:

• recognition of the transaction as invalid;
• if the funds that the contractor received in the form of security, he used for other purposes;
• changing the terms of the agreement at the mutual desire of the parties;
• when the contractor has fulfilled the requirements and conditions specified in the contract.

The obligations of the guarantor do not depend on the relationship between the principal and the beneficiary, even when the agreement contains a clause referring to the contract. The guarantee can be withdrawn only if this condition is reflected in the agreement. In the event of disputes, it is possible for the parties to reach a consensus by reducing the guarantee amount, however, such a solution, most often, is not approved by the customer.

Bank guarantee return cases

What happens to the BG if the contract is prematurely terminated or vice versa, it is executed in full:

• the classic basis for the return of the BG is the execution of the contract, if the customer has accepted the work and signed all the necessary documents about it;
• termination of the contract, which occurs by agreement of all parties or when the initiator is the beneficiary, also implies the return of the BG to the financial institution. An important condition for this is the absence of claims from the customer to the contractor;
• return of the BG due to the replacement of the security. This is the least common case when the document, by decision of the parties, is replaced by cash. Such an operation is carried out only with the approval of all parties to the agreement.

Knowing to how to return a bank guarantee under 44 FZ as a paper document, it is necessary to return the collateral in cash. This procedure must be spelled out in the contract. The law provides for 30 days for it, in fact, payments are made within 10-20 days.